Exhibit 2.1
AMENDMENT NO. 1 (this "Amendment") dated as of
October 13, 1999, among CINCINNATI XXXX INC., an Ohio
corporation ("CBI"), IVORY MERGER INC., a Delaware
corporation and a wholly owned subsidiary of CBI ("Sub"),
and IXC COMMUNICATIONS, INC., a Delaware corporation
("IXC"), to the Agreement and Plan of Merger (the "Merger
Agreement") dated as of July 20, 1999, among CBI, Sub and
IXC.
WHEREAS, pursuant to the Merger Agreement, CBI, Sub and IXC have
agreed to effect the Merger (such term and each other used but not defined
herein having the meaning given to it in the Merger Agreement), upon the terms
and subject to the conditions set forth in the Merger Agreement; and
WHEREAS CBI, Sub and IXC desire to amend the Merger Agreement, upon
the terms set forth in this Amendment.
NOW, THEREFORE, in consideration of the agreements contained in this
Amendment, the parties hereto agree as follows:
SECTION 1. Amendments to Section 4.03(a) of the Merger Agreement.
(a) Section 4.03(a) of the Merger Agreement is hereby amended by inserting the
following sentence immediately after the first sentence thereof:
"Notwithstanding the foregoing, in the event that, notwithstanding
compliance with the preceding sentence, IXC receives an IXC Superior
Proposal, IXC may, to the extent that the Board of Directors of IXC
determines in good faith (based on the advice of outside counsel)
that such action would, in the absence of the foregoing
proscriptions, be required by its fiduciary duties, participate in
discussions regarding any IXC Superior Proposal in order to be
informed with respect thereto in order to make any determination
permitted pursuant to Section 4.03(b)(i). In such event, IXC shall,
no less than 48 hours prior to participating in any such
discussions, (i) inform CBI of the material terms and conditions of
such IXC Superior Proposal, including the identity of the person
making such IXC Superior Proposal, (ii) inform CBI of the substance
of any discussions relating to
such IXC Superior Proposal and (iii) keep CBI fully informed of the
status, including any change to the details of, any such IXC
Superior Proposal."
(b) Section 4.03(a) of the Merger Agreement is hereby amended by
inserting the following sentence to be the final sentence thereof:
"For purposes of this Agreement, "IXC Superior Proposal" means any
offer not solicited by IXC made by a third party to consummate a
tender offer, exchange offer, merger, consolidation or similar
transaction which would result in such third party (or its
shareholders) owning, directly or indirectly, more than 50% of the
shares of IXC Common Stock then outstanding (or of the surviving
entity in a merger) or all or substantially all of the assets of IXC
and its Subsidiaries, taken together, and otherwise on terms which
the Board of Directors of IXC determines in good faith (based on the
advice of a financial advisor of nationally recognized reputation)
to be reasonably likely to obtain the IXC Stockholder Approval and
to provide consideration to the holders of IXC Common Stock with a
greater value than the consideration payable in the Merger."
SECTION 2. Amendments to Section 4.04(a) of the Merger Agreement.
(a) Section 4.04(a) of the Merger Agreement is hereby amended by inserting the
following sentence immediately after the first sentence thereof:
"Notwithstanding the foregoing, in the event that, notwithstanding
compliance with the preceding sentence, CBI receives a CBI Superior
Proposal, CBI may, to the extent that the Board of Directors of CBI
determines in good faith (based on the advice of outside counsel)
that such action, would, in the absence of the foregoing
proscriptions, be required by its fiduciary duties, participate in
discussions regarding such CBI Superior Proposal in order to be
informed with respect thereto in order to make any determination
permitted pursuant to Section 4.04(b)(i). In such event, CBI shall,
no less than 48 hours prior to participating in any such
discussions, (i) inform IXC of the material terms and conditions of
such CBI Superior Proposal, including the identity of the person
making such CBI Superior Proposal, (ii) inform IXC of the substance
of any
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discussions relating to such CBI Superior Proposal and (iii) keep
IXC fully informed of the status, including any change to the
details of, any such CBI Superior Proposal."
(b) Section 4.04(a) of the Merger Agreement is hereby amended by
inserting the following sentence to be the final sentence thereof:
"For purposes of this Agreement, "CBI Superior Proposal" means any
offer not solicited by CBI made by a third party to consummate a
tender offer, exchange offer, merger, consolidation or similar
transaction which would result in such third party (or its
shareholders) owning, directly or indirectly, more than 50% of the
shares of CBI Common Stock then outstanding (or of the surviving
entity in a merger) or all or substantially all of the assets of CBI
and its Subsidiaries, taken together, and otherwise on terms which
the Board of Directors of CBI determines in good faith (based on the
advice of a financial advisor of nationally recognized reputation)
to be reasonably likely to obtain the CBI Shareholder Approval and
to provide consideration to the holders of CBI Common Stock with a
greater value than the consideration payable in the Merger."
SECTION 3. Counterparts. This Amendment may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties.
SECTION 4. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflict
of laws thereof, except to the extent the laws of the State of Ohio are
mandatorily applicable for the rights of CBI shareholders and directors and
corporate governance matters.
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IN WITNESS WHEREOF, CBI, Sub and IXC have caused this Agreement to
be signed by their respective officers thereunto duly authorized, all as of
the date first written above.
CINCINNATI XXXX INC.,
by
/s/ Xxxxxxx X. Xxxxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: President and Chief
Executive Officer
IVORY MERGER INC.,
by
/s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and
Secretary
IXC COMMUNICATIONS, INC.,
by
/s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Sr. Vice President,
General Counsel and
Secretary
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